Fillmore No More

Not counting President James Garfield, as he served in the White House for barely six months, the last president not to veto a piece of legislation was Millard Fillmore; and he was chief executive for just three years, from 1850 to 1853.

#ad# Leaving aside such short-term executives, we must go back to Thomas Jefferson (1801-1809) to find a two-term president who never issued a veto. He remains the only one — although, until recently, it seemed that George W. Bush would most likely be joining him.

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Now it looks as though, later this week, President Bush will be moistening his veto pen and exercising his previously neglected constitutional prerogative.

The House of Representatives will then have the opportunity to attempt an override for the first time since President Clinton vetoed the Marriage Tax Reconciliation Act in the fall of 2000 — and it seems that this opportunity will be made use of before the ink of the president’s veto has dried.

This Wednesday or Thursday, in all likelihood, the president will veto H.R. 810, legislation that overturns the White House’s policy on embryonic-stem-cell research. The House will likely sustain the veto on the same day, leaving in place a sound policy that balances scientific progress with serious ethical considerations.

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While the media has been awash in stories about the substance and politics of the stem-cell debate, explanations of vetoes and how Congress sustains or overrides them have made for more arid terrain. It has been a while, after all. So, for those whose copy of Jefferson’s Manual on congressional procedure is a bit dusty, here is a primer on what’s likely to happen this week when the president and Congress engage in this unique constitutional struggle.

The packaging of the legislative debate this week adds additional intrigue. Proponents of the White House’s stem-cell policy did not want the debate to be only about a veto. Hence, by mid-week, Congress will send not one, but three, bills to the president. He plans to sign two into law and return H.R. 810 with a veto message, which Congress will consider almost immediately upon receipt.

Here’s how the next few days will play out. On Tuesday, the Senate will conclude debate, commence voting, and pass three bills: legislation the House previously passed a year ago last spring (May 24, 2005), by a vote of 238-194, overturning the presidential policy on stem-cell research (H.R. 810); a new bill by Pennsylvania Senators Rick Santorum and Arlen Specter providing funding for alternative forms of stem-cell research (S. 2754); and a third piece of legislation prohibiting fetal farming (S. 3504).

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After all three pass the Senate, the House will immediately move to consider S. 2754 and S. 3504, probably passing both Tuesday night or Wednesday,under suspension of the rules (a procedure usually used for consideration of relatively uncontroversial bills which proscribes amendments and limits time for debate to 40 minutes). Passing a bill under suspension of the rules, however, requires two thirds of those present and voting (290 votes, if fall members are in attendance). The other bill, H.R. 810, which previously passed the House, goes back to the lower chamber for “enrolling” (the formal process of preparing a bill to be sent to the White House), since the legislation originated in that chamber.If the other two Senate bills fail under suspension of the rules, the House Rules Committee will likely pass a resolution to bring them up the next day under a closed rule (no amendments), which then means they require only a simple majority to pass.

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After the two Senate bills and H.R. 810 are enrolled, they will immediately be sent to the White House. On the same day he receives them, the president will sign into law the Santorum-Specter bill and the ban on fetal farming, and he will veto H.R. 810, returning it to the House along with a message stating his reasons for withholding his approval (the veto message).

Since the vetoed stem-cell legislation is a House bill, it will be returned to the House, its chamber of origin, on either Wednesday or Thursday, and will be considered immediately. When the bill arrives from the White House by executive messenger,the House clerk reads the veto message, and, at least according to precedent,the chamber has to deal with itupon receipt. (Jefferson’s Manual for House rules says that “when it is laid before the House the question on passage is considered as pending and no motion from the floor is required.”) In practice, however, while the House will most likely vote immediately, “the House shall proceed to consider” is taken to be fulfilled if the veto is referred to committee or postponed to a date certain. Nevertheless, I’m told the House will move to consider the bill immediately, without amendment or any other intervening motion.

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The relevant motion is “shall the House pass the bill again, notwithstanding the objections of the president.” That motion takes two thirds of the House to pass (290 votes). If 146 members vote”no,” the veto is sustained. (That number could shift a little since the two thirds, as with legislation suspending the rules, refers to those “present and voting” that day, and not to the entire membership of the House). There were 194 ”no” votes on final passage in the House of the stem-cell bill. With almost a 50-vote cushion, most vote counters closely watching the procedure believe the veto will not be overridden.Once the veto is sustained in the House, no further action by the Senate is required.Senate action would only take place if the veto were overridden in the House.

So James Garfield, move over. Millard Fillmore, take a seat. You’ve finally been supplanted. As this week’s successful foray will demonstrate, George W. Bush’s White House has finally learned the veto dance.

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— Gary Andres is vice chairman of research and policy at the Dutko Group Companies and a frequent NRO contributor

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